Little Legal Recourse For Artists’ Rage Against Musical Torture

One of the obvious questions from the announcement of the musicians Rage Against Musical Torture, and one that several people have been asking, is what avenues of legal recourse do the musicians have? It turns out remarkably few, if any.

A look at the recent case of Jackson Browne v. John McCain demonstrates why. Here is a link to the complaint in Browne v. McCain; as you can tell, Plaintiff Browne pled four causes of action for the wrongful use of his music. The four counts are copyright infringement, vicarious copyright infringement, violation of the Lanham Act and violation of state law (California) right to publicity. (You can see the court’s rulings upholding the viability of these counts at the links provided here).

The lead count of copyright infringement is based upon 17 USC 501 et seq. The specific triggering conduct is delineated in 17 USC 106-122. Unlike in Browne, there really is no provision of the applicable law that comes into play. In Browne, there was an appropriation for use in a campaign commercial, that was broadcast on television and the internet, and the conduct happened in the United States; none of that is the case, unfortunately, for the musicians here. There was no “commercial use”, there was no “secondary broadcast”, and the putative conduct did not occur within the United States.

The key here is the nature of the use. As horrid as the conduct of using the artists’ music for torture is, there is no evidence that the governmental actors, whether soldiers, CIA or contractors, obtained the music illegally. Furthermore, there is no evidence that they used the music for a “commercial purpose”. It was not broadcast, nor was it played in a public setting; there is legally little to nothing to distinguish what was done from a person playing his boom box or stereo too loud in his apartment building. In short, there does not seem to be a “copyright infringement”. The same rationale explains why there is no apparent RIAA violation. Also, since there was no cognizable copyright violation, there was no “vicarious copyright infringement” as was present in Browne.

The next common count to proceed in these situations is via the “Lanham Act“. Here, again, the facts simply do not truly reach the scope of the claim. There is no legal basis for asserting that the restricted use made of the artists’ music would create confusion or imply that the artists approved of the torture; and, again, the conduct was not done in a public setting or performance. There just is not a federal trademark infringement for false association or false endorsement.

The last count in the Browne complaint was a pendant claim for state (California) law violation of “right to publicity”. This is a state law claim and, unfortunately, the known conduct occurred outside of the territorial United States. There is no hope of making out a state common law tort under these circumstances.

There are two general concerns at play here as well, statute of limitations and subject matter jurisdiction. Under 17 USC 507, all of the copyright/fair use type of issues bear a statue of three years for civil claims and five years for criminal violations (if applicable, which they do not seem to be). The known conduct seems to be outside of the statute period by now, even if a cognizable claim were able to be made out.

As to subject matter jurisdiction, the first question is whether or not the government is capable of being sued for any of the misuse to start with. The US government cannot be sued without its consent and, somewhat surprisingly, the government, pursuant to 28 USC 1498, has so consented to suit. The bigger problem is territorial jurisdiction because the known acts occurred primarily, if not exclusively, outside of the United States. Even Guantanamo would appear to be excluded here. Although the Supreme Court, in Rasul v. Bush, permitted jurisdiction for purposes of the grand writ of habeas corpus, the decision clearly appears limited to that writ. That conclusion is supported by the historic Eisentrager decision (see the discussion here as well). The bottom line is that even were it possible to argue a valid claim exists, it seems highly unlikely a US federal court would accept jurisdiction of the claim.

What is needed for the artists to be able to protect their works, and their good name, out of this situation is an international “Doctrine Of Moral Rights” allowing them to have a justiciable interest in the moral manner in which their work is used. Indeed there is just such an international law, and it is embodied in what is known as “The Berne Convention“. Under the Article 6 of the original (read French) iteration, there is a moral rights protection for authors and artists in the “right of integrity” of their works. This gives the artist an enforceable right against “mutilation or distortion that would prejudice the author’s honor or reputation”. In French law, this right is called “droit au respect de l’oeuvre” and is mentioned in Article 6 of the French Law No. 57-298 of 11 March 1957. This has been at times, in various European courts, construed as a right of an artist to not have his work used for an immoral purpose including, arguably, torture.

Unfortunately, although the US is a signatory to the Berne Convention, it does not recognize this extended moral “right of integrity” above and beyond the copyright, trademark and fair use law discussed above, which leaves the Rage Against Torture artists clean out of luck it seems. A case that appears as close to on point as can be found is Shostakovich v. 20th Century-Fox, 80 N.Y.S.2d 575, aff’d, 87 N.Y.S.2d 430 (1949). In Shostakovich, the court said:

The wrong which is alleged here is the use of plaintiffs’ music in a moving picture whose theme is objectionable to them in that it is unsympathetic to their political ideology. The logical development of this theory leads inexcapably [sic] to the Doctrine of Moral Right. There is no charge of distortion of the compositions nor any claim that they have not been faithfully reproduced. Conceivably, under the doctrine of Moral Right the court could in a proper case, prevent the use of a composition or work, in the public domain, in such a manner as would be violative of the author’s rights. The application of the doctrine presents much difficulty however. With reference to that which is in the public domain there arises a conflict between the moral right and the well established rights of others to use such works. Clemens v. Belford Clark & Co., [14 F. 728 (1883)]. So, too, there arises the question of the norm by which the use of such work is to be tested to determine whether or not the author’s moral right as an author has been violated. Is the standard to be good taste, artistic worth, political beliefs, moral concepts or what is it to be? In the present state of our law the very existence of the right is not clear, the relative position of the rights thereunder with reference to the rights of others is not defined nor has the nature of the proper remedy been determined. Quite obviously therefore, in the absence of any clear showing of the infliction of a wilful injury or of any invasion of a moral right, this court should not consider granting the drastic relief asked on either theory. The motion is accordingly denied in all respects.

Notably, the plaintiff in Shostakovich also sued in France and was successful there. Is there any hope in foreign courts for the artists here? Probably not. Iraq and Afghanistan are not signatories to the Berne Convention. Cuba is, but it seems unlikely that Cuba’s courts could successfully be accessed and utilized for the conduct at Guantanamo, and it seems beyond unlikely the US government would honor a judgement from a foreign country under this theory, whether from Cuba or any other country.

In short, there does not appear to be any valid avenue for damage recovery or injunctive relief to the harmed artists for the wrongful appropriation of their music by the US government for use in its torture program. What the artists can do is to seek the truth via the FOIA action, a process they have started. The other thing they, and you, can do is to speak out in objection to the illegal torture and detention scheme of the United States government. If you wish to join with the artists, and the generals, in voicing your objection to torture visit the CloseGitmoNow website.

34 replies
  1. BoxTurtle says:

    They can make a public spectacle of themselves. That’s a list of folks that reaches a WIDE audience. Imagine if every concert of those folks included a “call your congresscritter about torture” speech.

    Boxturtle (Imagine a concert on the steps of the Lincoln memorial. While Congress is in session)

  2. Hmmm says:

    Good post, Bmaz.

    I’m surprised the plaintiffs haven’t attempted to state a claim for copyright infringement on the basis of unauthorized public performance of the works. They would have to show that the military workplace is a public place for purposes of copyright law, like offices are. When a business plays music over a background music system where lots of employees can hear, even if not open to the general public, that’s considered a public performance and is subject to licensing. Performance rights organizations including ASCAP and BMI sell licenses to businesses that want to do that, but most buckle and stop rather than pay. Some turn to Muzak and other services because the service costs less than the license plus operating costs to do an in-house program.

    Maybe the out-of-country aspect made the unauthorized-public-performance path too hard. I bet there are reported decisions on whether music played over public address systems at US military overseas bases are subject to US copyright law. I’d kind of expect that to be a yes, given how strong the copyright industry’s lobbying has always been.

    But as a former musical parody and audio collage artist of some notariety/infamy, I’m not able to share your enthusiasm for stronger moral rights legislation in the US. There are some very effective forms of advocacy speech that depend upon re-using earlier works and reshaping them for commentary effect, which would be made even harder to release under any significantly stricter moral rights framework than they already are. I mean short of Yes Men style outright impersonation of the original (which I’d agree treads on right of publicity — odious concept that that is — and possibly Lanham trademark rights). I can report that running an actual fair use defense in court when sued for copyright infringement is not fun, even under the best of circumstances, and even when the work is done in pursuit of progressive ideas.

    • bmaz says:

      Yeah I do not necessarily take a position on whether the moral rights protection available in western Europe ought to be extended here or not, I see both sides of that argument (and yours is well stated), simply pointing out that there is no such animal available in the US for the artists here.

      As to the “public performance” aspect necessary for copyright infringement action, I have discussed this with several experts, including one at one of the absolute top entertainment law firms in LA that specialize in this precise area, and the unanimous take so far is that there are not, at least from what is currently known, sufficient indicia and/or criteria of public performance or commercial purpose.

  3. MadDog says:

    Bmaz, what are the musicians’ chances of getting their FOIA request filled?

    I don’t know who they are using for their legal representation in the FOIA effort, but given their deep pockets, I’m guessing they can afford some high-priced legal gunfighters.

    • bmaz says:

      They are being represented by the National Security Archive in relation to the initial FOIA. My honest guess is that there will be a couple of useless docs turned over – anything already publicly released that contains any information on songs/artists and anything else will be held back under a national security exemption claim of some sort.

      • MadDog says:

        Well then at least they’re smart enough to go with FOIA-experienced litigators like the National Security Archive rather that using some Gucci-loafered music biz types. :D

  4. TheraP says:

    Thank you for the post, bmaz. It is discouraging that an artist can create something – something envisioned to entertain – and have it used as a weapon to harm people. It may not be illegal, but it sure as heck is immoral! It is a moral outrage. Torture of any type is terrible. But to have your work of art used in the harming of humans harms the very artist who has made the work. It’s a kind of “torture” for the artist and for the artist’s public.

    To me this is the key horror of torture: That a government, under the guise of “law”, abuses and harms human persons, flouting higher laws in the process, including moral standards.

    I know I’m screaming into the ether here. But boy, it’s one abuse after the next, in the minefield left behind by bushco.

  5. MadDog says:

    Totally OT, but former AG “Mumbles” Mukasey had one of the most insane and anti-Constitutional WSJ Op-Eds the other day:

    Civilian Courts Are No Place to Try Terrorists

    We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents…

    I’ve often wondered why the Bush/Cheney regime felt so comfortable choosing Mumbles as a replacement for Fredo. Particularly when Mumbles himself had overseen significant terrorism trials.

    I’m guessing that based on Mumble’s own experience of such, he stealthily jumped over to the Dark Side, and that his disdain, if not active work to prevent future such Article III terrorism trials, became well known to judicial insiders, and particularly to Cheney, Meese and their Federalist Society redcoats.

    That WSJ Op-Ed makes no bones about Mumble’s preferences for rule by Unitary Executive diktat rather than by rule by law.

  6. earlofhuntingdon says:

    If contractors used it in the course of performing lucrative defense contracts, the music became part of equipment used to make substantial sums of money. Ditto if it were used by private “researchers”, spending and seeking large government grants, testing out which combination of sights, sounds and “Do not touch the dial. Make no attempt to adjust your picture. We are controlling the transmission….” Tenuous, perhaps, but large sums of money were at stake.

    These boys didn’t just bang the drum slowly, they used copyrighted music to do it, without permission. As for not being in the US, there’s a good argument that for all intents and purposes, it is the US, more so than being onboard a US flagged ship or airliner. The most likely reaction to Castro’s government demanding any change in conduct or conditions at Gitmo would be an impolite hand gesture more common among those attempting to maneuver traffic in Brooklyn and Manhattan.

    • bmaz says:

      Maybe, but I am telling you, it isn’t just me saying there appears to not be a public performance or commercial purpose within the standard use of the terms of art, it is experts in the pertinent legal field. And I absolutely do not believe the extra-territorial locations are for “all intents and purposes” legally the US for jurisdictional purposes.

      • klynn says:

        I’ll tell you bmaz, if I was one of the musicians, I would pursue the public performance or commercial purpose angle even if the “pros” are stating, “No way!.”

        I bet there is some possible case law in this somewhere. Somewhere.

        The artists are entitled to protection of their work, we just have to find out how to protect it so that this cannot continue in the future.

        There has to be a legal angle somewhere.

        Thanks for the post bmaz. You answered all my questions from the earlier post.

        • bmaz says:

          You would pursue what facially looks like a frivolous path? Sounds like a fast way to having sanctions assessed if you ask me; without a more sound basis I sure wouldn’t do that.

          • klynn says:

            Any thoughts on an angle to protect the artists’ work in terms of the future?

            As to my point @ 19, many of the artists are quite wealthy and if their art is of great import to them personally, I know for myself (a former life as a starving artist) if I had the resources, I would be gathering great minds to figure out a way to protect my work from being used in this manner and to find out if there was any sliver of legal action that might be possible. No action beyond the FOIA would not rest with me in terms of my art and justice. I would want the extended moral “right of integrity” recognized above and beyond the copyright, trademark and fair use law. It would be money well spent.

            • BoxTurtle says:

              Their only weapon is bad publicity. But they can distribute it to a very wide, very loyal fan base rapidly.

              Imagine what would happen if Metallica asked their fans to call their congresscritters and tell them what they think. Bet the critters first response would be “Rahm, is that you?”. :-)

              Brittany breaking down in tears on Oprah. Even FOX would report that, especially if she was wearing a bikini at the time.

              Boxturtle (When your only tool is a hammer, the whole world looks like a nail)

              • joanneleon says:

                Boxturtle, I’m thinking that the old advice about not starting wars with people who buy ink by the barrel also applies to people who buy guitars, distortion pedals, and huge amplifiers who play at large concerts and whose music goes viral on YouTube and iTunes.

                • BoxTurtle says:

                  You’re likely correct. But right now, I’m not hearing the sound of aging rockers prying loose from their couches or pop tarts undressing. I’m hearing whining and whinging.

                  If they act, it could make a real difference. I’m probably stereotyping here, but rabid music fans are not the most politically aware demographic. Wake ’em up, no telling what might happen.

                  Not sure that people who poke studs through their cheeks are a good choice to speak out against torture, though.

                  Boxturtle (That’s not torture. I paid $500 to have a stud installed there)

              • klynn says:

                A bunch of rich rockers bringing together some big legal minds to address the extended moral “right of integrity” recognized above and beyond the copyright, trademark and fair use law, I think, might get some press. Especially as a Rollingstone cover story on music and torture. Imagine the cover graphic.

                It would probably create a collective gasp.

                Hear that Rollingstone. Stop the presses. Change the cover story.

                (And a cream pie for freep)

          • BoxTurtle says:

            Perhaps they can get assigned to Judge Walker…he seems to go real easy on the sanctions.

            Boxturtle (Especially if you’re the government)

    • TheraP says:

      What about the making and transmission of tapes? If tapes were viewed in the US – and music was blasting as part of the “performance” – does that make it music used in experiments by psychologists for the purpose of “breaking down” a personality? Is there music on those tapes?

  7. Nell says:

    Thanks for the legal analysis, bmaz. The point of the musicians’ FOIA letter is, of course, to throw light on the torture itself, and may it succeed brilliantly.

  8. Loo Hoo. says:

    Well, maybe the musicians had been advised as you suggest, bmaz, but wanted to go ahead to make a humanitarian point for the world to see.

    Sure didn’t hurt.

  9. Minnesotachuck says:

    OT – bmaz, re your “Get The Lead Out” post of a few days ago, I checked Dubner’s and Levitt’s Freakonomics out of the library again and verified that my comment about their assertion of a strong statistical link, and perhaps causality, between the legalization of abortion and the falling juvenile crime rates a decade and a half or so later was essentially correct. My memory is not as bad as I was afraid it was. The authors briefly use the issue as the opening hook in the introduction, then cover it in considerable depth from pp 136-144. The sourcing in the related end notes is also extensive, although in view of the way the authors have apparently shit in their hats sourcing wise in their new book it would probably be worth checking to make sure they’ve fairly represented them. This all is not to say that lead paint removal wasn’t also a factor, however at the very least there is another, competing explanation that is also plausible.

  10. tjbs says:

    If these tactics were used against Pidilla, that would be on US territory.
    This mix and match private/pubic security will haunt us for a long time.

  11. Peterr says:

    Goooood Morning, Guannnntannnaaaah-moooooooo!

    (Just had to get that out of my system . . .)

    Bmaz, what about the damage that the use of this music caused the artists relative to potential lost sales of their music and potential lost concerts, because of the association of their songs with torture?

    I’m not saying that Jackson Browne had a huge fanbase in Iraq prior to 2002 that is now gone, or that James Taylor has had to cancel a bunch of concerts in Saudi Arabia, but I could see where the DOD/CIA use of this music and the attendant publicity *could* have damaged their reputations internationally.

    It would probably be hard to quantify, let alone prove, but it strikes me that if they are serious about wanting to hold the DOD/CIA to account for what was done with their music, this might be a possible approach.

    I sure as hell wouldn’t like to discover that recordings of my sermons were used to keep people awake for days at a time, or that my voice was used with such abusive intent that it now echoes in someone’s head to remind them of what have to be among the worst days of their lives.

    • bmaz says:

      There is no evidence that Jackson’s music was used at all, nor James Taylor. Secondly, none of the artists used would particularly have a high concert attendance rate by muslim terrorists; I find it beyond credulity that this metric could competently be fashioned into a legitimate basis for suit. This area of the law is extremely complex in its many niches; there are a lot of them, some hundreds of years old, some quite new and digital related. So far, the conduct simply does not seem to fall into any of them. Quite frankly, these artists have a greater likelihood of losing sales by publicly joining this effort – from the gung ho neocon crowd – than they did from the very much hidden and secret use of their music for torture. And I cannot emphasize enough the jurisdictional issues; they are a real problem; remember the motion to dismiss via Iqbal?? You better believe there will be a hurdle there. The one thing I have though of is what tjbs mentioned, and that is Jose Padilla. I still see all the lack of public performance and/or commercial purpose issues, but at least you don’t have the jurisdictional problems.

  12. joanneleon says:

    If they don’t have any legal recourse, then I hope they use their artistic recourse profusely.

    It still seems like there should be some way to keep people from associating your artistic work and reputation, against your will, with something as vile as torture.

  13. freepatriot says:

    I don’t know if it’s relevant to the discussion, but back in the day, we used to sit in the closet listening to AC-DC, just to be sure it was as loud as possible

    so I’m not sure that listening to Angus Young could ever be considered torture

    and I’m sure the CIA’s sound system sucks, so I doubt they played it as loud as necessary to get the full effect

    barry manilow, now that could be considered torture …

    jes sayin, is all

    (duckin & runnin)

  14. bzick says:

    “commercial purpose”

    bmaz: I humbly submit that you’re being too narrowly conventional in your application of definitions.

    The rest of your analysis may well moot the point, but just for the sake of the narrow issue, the purpose for which the music was used was indeed arguably commercial.

    In the broadest sense, the music clearly was used for a specific purpose, employed by paid professionals who used it explicitly in the performance of the duties for which they were hired, by definition that being a commercial enterprise. It was not at all like someone playing a boombox – which is for pleasure of the listener. Fees were paid for services rendered, which was the playing of the music as a means for eliciting responses to interrogation.

    Violation of copyright need not be solely in a “public” sphere; violation occurs when artists are deprived of due compensation for their work product. Any legit use of the artists’ material required a proper government contract specifying terms of use, just like any other government contract for services.

    • Hmmm says:

      I may be mis-remembering, but I think the standard there is along the lines of whether this unlicensed use of the music is both (a) one of the several enumerated rights under 17 USC, and (b) a use for which music is customarily licensed. Since a private performance is not an enumerated right, and I wouldn’t be surprised if an argument that a non-public military use is not a customarily licensed use prevailed, they may not have any leg on which to stand. But again, mainly, since this was/is not a place under US jurisdiction, I don’t think it’d ever get to that question. Interesting though it is.

      So is the current theory here that since there is no jurisdiction and therefore no possible cause of action, USG is free to turn down the FOIA request? Or do they still have to cough up the playlists anyway?

      • bmaz says:

        No, the FOIA stands on its own merits irrespective of ability to sue. Not to say they will not refuse substantial production on some trumped up BS of course.

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